Posts Tagged ‘pumping at work’

The passage of the Fair Labor Standards Act (“FLSA”) provision requiring employers to provide mothers a reasonable break time and private place to express breast milk has created fodder for a few lawsuits, one of which I blogged about not too long ago. In another recent case (Miller v. Rosche Surety & Cas. Co.), the 11th Circuit, a federal court, held that a female employee who was fired after she sent a company executive an email asking where she could express breast milk, while temporarily working at a different office, did not have a viable retaliation claim under the FLSA because no reasonable jury could interpret her email as a protected complaint. Allow me to explain:

The FLSA protects employees who engage in protected activity from retaliation by their employers. A clear example of a protected activity would be a written complaint to an employer informing the employer that the employee believes his/her rights under the FLSA are being infringed upon and calling for protection of those rights, but rarely are complaints to employers so straightforward. Therefore, to determine whether a complaint constituted a protected activity, the law asks whether a reasonable jury could interpret the complaint as protected activity. And, according to a Supreme Court ruling in 2011 (Kasten v. Stain-Gobain Performance Plastics Co.) the highest court of our nation has even said that an oral complaint may trigger the FLSA’s anti-retaliation provision. However, even an oral complaint has to have some degree of formality in order to give the employer fair notice that an employee is lodging a grievance. Indeed, a complaint needs to be clear and detailed enough to put a reasonable employer on notice, considering the context and content, that an employee is asserting rights provided by the FLSA and calling for protection of those rights.

In the Miller case, a female employee who worked for a Florida bail bond company simply sent an email to a company executive asking about where she could use her breast pump while working somewhere other than her usual place of work. The 11th Circuit held that this inquiry could not reasonably be construed as an FLSA complaint because the email did not put the employer on notice that the employee was lodging a grievance. The 11th Circuit also held that the employee could not raise a triable issue regarding whether the employer violated the FLSA provision that requires employers to provide employees with a private place to express milk because the employee testified that she was given necessary breaks for this purpose and had access to a private place to do so while at her regular office.

Interestingly, the employee cited to a Family Medical Leave Act (“FMLA”) case to support her view than an employee’s “prospective request” that an employer comply with the FLSA is “protected activity” under the act. However, the 11th Circuit distinguished the FMLA case in which it ruled that an employee’s pre-eligibility request for post-eligibility maternity leave was protected under the FMLA on the basis that the FMLA contains a provision making it unlawful for employers to “interfere with, restrain, or deny” an employee’s exercise, or attempt to exercise, any right provided by the FMLA while the FLSA lacks a comparable provision.

Finally, the employee unsuccessfully argued that because the employer monitored her email communications at work, an email that she sent to a friend under the subject line “Federal Law” that referenced the FLSA provision regarding expressing breast milk was akin to an FLSA complaint. The Court rejected this argument because the employee never showed the email to the employer and never told anyone at her company that she believed the company was violating the provision. Therefore, the email to the employee’s friend did not effectively notify the company of her grievance.

Lesson for Employers: Although this case ended well for the employer, employers should take issues surrounding expressing breast milk at work seriously. In a case such as the one discussed above, the employer, knowing that the employee was pumping at work, might have chosen to proactively inform the employee where she could pump while working at the different location, which effort would have cast the employer in the best light possible. For large employers, paying attention to the individual needs of each employee might not be possible, but larger employers might be able to designate lactation areas that eliminate the need for employees to inquire about suitable places to pump while visiting other offices or have written express breast milk policies that address how employees should handle pumping away from their regular place of work. The attorneys at Harmon & Davies are here to assist employers with navigating issues surrounding expressing breast milk at work.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

Not too long ago, the Patient Protection and Affordable Care Act (“PPACA”) amended the Fair Labor Standards Act (“FLSA”) to require employers to provide reasonable beak time for employees to express breast milk for nursing children and I immediately envisioned a slew of lawsuits related to this new requirement. Under the PPACA, employers are required to provide employees with a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. For many employers this is easier said than done as many work environments present obvious challenges. For example, where do employees pump when they are at construction sites, traveling in a car (particularly with a sales partner), or on a plane (think pilots and flight attendants)?

In Salz v. Casey’s Marketing Company, an employee working at a convenience store (a work environment not particularly conducive to pumping) returned from maternity leave and requested a private and secure place where she could express milk. The employer allowed the employee to use a store office. However, while expressing milk in the store office, the employee discovered that there was a functioning video camera in the room. The employee alleged that she had never been told about the camera and she conveyed her discomfort about its presence. According to the employee, the company failed to meaningfully respond to her complaint about the camera. The company allegedly refused to disable the camera and simply told the employee to place a plastic bag over the video camera while she was pumping milk.

Thereafter, the employee was unable to relax with the camera in the office and experienced reduced milk production. The employee alleged that when she complained, the company retaliated against her by reprimanding her for failing to fill an ice cream machine, failing to put hot dogs on the grill, and leaving dirty dishes.

Eventually the employee quit her job and filed a lawsuit in Iowa state court alleging that the company had denied her the right to express her milk in a secure and private place as required by PPCA’s amendment to the FLSA, that the company violated her common law right to privacy under Iowa law by installing and operating a camera in a room where the company knew she was expressing milk, and she asserted the company constructively discharged her in violation of the FLSA in retaliation for her complaints. (Note: even though she quit, the law sometimes deems a company to have discharged an employee where it makes life for the employee so bad that the employee essentially has no other option but to quit).

The case was removed to federal court where the judge dismissed the employee’s claims for lactation rights on the basis that the PPACA did not create any private right of action against an employer that violates the requirement. Rather, the PPACA gave the employee the right to file a complaint with the Labor Department, but not to initiate her own lawsuit.

However, the court held that the employee could pursue her claim for retaliation because the FLSA protected the employee from being retaliated against for complaining about the lack of an adequate place to express milk, noting that once an employer discriminates or discharges an employee in relation to an employee’s complaint about the employer’s express breast feeding policy, they have violated the FLSA.

Lesson for Employers: Although the court said that an employee may not pursue a private right of action for being denied a secure and private place in which to express breast milk, Employers should take this issue seriously. This includes instituting an express breast feeding policy, providing employees with a secure and private place in which to express milk, and taking seriously any complaints from employees about the adequacy of the designated space.